Colley v. Colley

• Decision Date: 13 January 1994
• Parties: Gail M. COLLEY, Respondent, v. John E. COLLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 796

606 N.Y.S.2d 796

200 A.D.2d 839

Gail M. COLLEY, Respondent, v. John E. COLLEY, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 13, 1994.

Dranoff & Johnson (Daniel Block, of counsel), Pearl River, for appellant.

De Lorenzo, Gordon, Pasquariello, Weiskopf & Harding P.C. (Barbara S. Lee, of counsel), Schenectady, for respondent.

Robert A. Maslyn of Faulkner & Maslyn, Law Guardian, Schenectady, for Meghan Colley and another.

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 7, 1992 in Schenectady County, which, inter alia, granted plaintiff's motion for certain pendente lite relief.

The parties were married in June 1979 and have two children, Meghan (born in September 1985) and Moira (born in August 1988). Difficulties subsequently developed and, in June 1992, plaintiff commenced this action for divorce. Plaintiff thereafter moved for certain pendente lite relief including, inter alia, temporary sole custody of the minor children, temporary maintenance and child support and, further, the imputation to defendant of an ability to earn income commensurate with that earned by him at his previous employment. Defendant cross-moved for, inter alia, pendente lite custody of the children. After considering the parties' respective submissions Supreme Court, inter alia, ordered that (1) plaintiff would have primary physical custody of the children, pending a hearing on the matter, and defendant would be granted visitation every other weekend and one weekday per week, (2) defendant would take the children to a Catholic mass on those weekends when he had visitation with them, and (3) defendant was precluded from having the children in the company of an unrelated female during such visitations. ¹ Additionally, Supreme Court fixed defendant's child support obligation at $3,659.81 per month, based upon an imputed annual income to defendant of $181,000 per year and application of the statutory percentage (see, Domestic Relations Law § 240[1-b][b][3][ii]; however, Supreme Court directed defendant to pay $700 per month until further order of said court, noting that the balance would accumulate as arrears. This appeal by defendant followed.

We begin our analysis of the issues before us by restating the general rule that modification of pendente lite awards rarely should be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires (see, Newkirk v. Newkirk, 194 A.D.2d 842, 598 N.Y.S.2d 589; Marr v. Marr, 181 A.D.2d 974, 975, 581 N.Y.S.2d 873). Indeed, this court has consistently held that the most appropriate remedy for any claimed inequity in a temporary award is a speedy trial (see, Marr v. Marr, supra; see also, Gianni v. Gianni, 172 A.D.2d 487, 488, 568 N.Y.S.2d 113). With these principles in mind, we turn now to the specific arguments raised by defendant on appeal.

Initially, we reject defendant's assertion that Supreme Court abused its discretion in ordering that defendant refrain from having the children in the presence of an unrelated female. Both the Law Guardian and the clinical psychologist who evaluated the parties and the children stressed the need for the children to spend quality time with defendant which, the record indicates, was not occurring when defendant's paramour and her children were made part of the visitation. Inasmuch as the Law Guardian opined that it was not in the children's best interest for defendant's paramour to be involved in these visitations, which is, of course, the controlling standard in determining the reasonableness of visitation privileges, we see no reason to set aside this provision in the court's order (compare, Hummel v. Hummel, 191 A.D.2d 296, 595 N.Y.S.2d 37). We are similarly unpersuaded that Supreme Court abused its discretion in ordering that defendant take the children to Catholic mass on those weekends when he has visitation with them. Supreme Court's order does not impermissibly interfere with defendant's own religious practices (see, Barran v. Nayyar, 174 A.D.2d 1012, 572 N.Y.S.2d 821; compare, Wheeler v. Wheeler 147 A.D.2d 939, 537 N.Y.S.2d 387), and there is no indication in the record that this provision is contrary to the best interest of the children (cf., Matter of Bentley v. Bentley, 86 A.D.2d 926, 927, 448 N.Y.S.2d 559).

We are, however, of the view that Supreme Court erred in making an award of temporary custody without first conducting an evidentiary hearing. The parties submitted conflicting affidavits, and it became apparent upon oral argument of this matter that an expeditious trial is not a realistic possibility. Under these circumstances, we are of the view that a hearing must be held to ensure that Supreme Court's pendente lite custody determination is in the best interest of the children (see, Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176; Biagi v. Biagi, 124 A.D.2d 770, 771, 508 N.Y.S.2d 488), and we direct that such a hearing be conducted forthwith.

Supreme Court's resolution of the temporary custody issue may well render the challenges to defendant's visitation schedule and support obligation academic. To the extent, however, that Supreme Court adheres to its initial determination in this regard, it is appropriate that we address defendant's arguments on these points. It is well settled that expanded visitation is generally favorable absent proof that such visitation is inimical to a child's welfare (see, Persaud v. Persaud, 170 A.D.2d 763, 765, 565 N.Y.S.2d 580; Quinn v. Quinn, 87 A.D.2d 643, 448 N.Y.S.2d 248). Here, Supreme Court failed to articulate, and we are unable to discern, a reason for limiting defendant's visitation to alternate weekends and one day during the week. As we have already observed, both the Law Guardian and the clinical psychologist recognized the importance of fostering a meaningful and nurturing relationship between the children and defendant, and expanded visitation, which defendant has actively pursued, would appear to be entirely consistent with this goal. Accordingly, we are persuaded that justice requires this matter be remitted to Supreme Court for a hearing to determine a more appropriate visitation schedule, i.e., one that, at a minimum, takes into account holiday and summer vacations (see generally, Persaud v. Persaud, supra, 170 A.D.2d at 765, 565 N.Y.S.2d at 580).

We further conclude that Supreme Court's computation of defendant's child support obligation is flawed in two material respects....